As Canada and Mexico prepare to enter the Trans Pacific Partnership negotiations, there is interest in how their intellectual property laws would need to change to adhere to the requirements found in leaked text. The following is a brief comparison of 1) their patent and data protection laws to the leaked texts, and 2) a comparison of the TPP leaked text with NAFTA requirements. It shows that the TPP would require Canada and Mexico to alter their domestic laws to allow patents on more types of subject matter (ie – new uses in Mexico and method patents in Canada), and would require patent extensions beyond the 20 year limit in Canadian and Mexican law.
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Summary of the Table
Requirements of Patentability
- TPP, Canada, Mexico, and NAFTA all require the invention (product or process) to be “new” or “novel”.
- New Uses
- TPP requires patents for any new forms, uses, or methods of using a known product.
- Canada does not allow patenting of medical methods but allows patenting of new uses (use claims).
- Mexico does not allow patenting of new uses or new forms of known inventions or materials.
- Inventive Step (Non-Obviousness)
- TPP, Canada, Mexico, and NAFTA all require some form of inventive step (non-obviousness) for all patents.
- Industrial Application (Usefulness)
- TPP, Canada, Mexico, and NAFTA all require some form of industrial application (usefulness) for all patents.
Patentable Subject Matter
- TPP mandates making patents available for “plants and animals” and “diagnostic, therapeutic, and surgical methods for the treatment of humans or animals”.
- Canada does not allow patenting of certain plants and also does not allow patenting of medical (therapeutic and surgical) methods. However, Canada allows patenting of diagnostic methods.
- Mexico does not allow patenting of “animal breeds” and “plant varieties”. Additionally, Mexico does not allow the patenting of “surgical and therapeutic treatment or diagnostic methods applicable to the human body and to animals.”
- NAFTA allows parties to exclude from patentability, “plants and animals other than microorganisms” as well as “diagnostic, therapeutic and surgical methods for the treatment of humans or animals.”
Patent Term Extensions
- TPP requires members to grant extension of patent terms beyond the TRIPS 20 year minimum.
- Canada limits patent terms to 20 years from the filing date for patents filed on or after Oct. 1, 1989.
- Mexico limits patent terms to 20 years from the filing date.
- NAFTA allows patent term extensions.
- TPP, Canada, Mexico, and NAFTA all contain the ‘minimum data exclusivity protection of 5 years’, as required under NAFTA, although Canada’s regime goes beyond the NAFTA requirements. Canada does not offer data exclusivity for drugs that contain medicinal ingredients that have been previously approved, as required by the TPP.
- TPP, Canada, and Mexico all have some form of patent linkage system. Patent linkage is not dealt with in NAFTA.